Zip-O-Laminators LLC v. City of Eugene

Where a petitioner fails to show that a decision is a land use decision (ORS 197.825(10(a)(A) and fails to show that a decision significantly impacts present or future land uses, LUBA will dismiss.

In 1982, the City amended its codified land use regulations in Eugene Code (EC) Chapter 9 to adopt noise performance standards (the 1982 amendment). The City repealed and replaced EC Chapter 9 in 2001. In 2007, the City adopted EC Chapter 6.

At issue is Ordinance 20680 “An Ordinance Concerning Regulations for Commercial and Industrial Noise; Amending Section 6.750 [specifically, removing EC 6.750(g)] of the Eugene Code, 1971; Adding Section 6.752 to that Code; and Declaring an Emergency and Providing for an Immediate Effective Date” (the ordinance). The City adopted the ordinance in January 2023 (the decision). Petitioner filed their notice of intent to appeal the decision and then filed their petition for review. The City moved to dismiss the appeal.

ORS 197.825 provides that LUBA has exclusive jurisdiction to review land use decisions. ORS 197.015(10)(a)(A) provides that a “land use decision” is a local government’s decision that concerns the adoption, amendment, or application of the goals, a comprehensive plan provision, a land use regulation, or a new land use regulation. ORS 197.015(11) provides that a “land use regulation” is “any local government zoning ordinance, land division ordinance … or similar general ordinance establishing standards for implementing a comprehensive plan.”

In its motion to dismiss, the City argued that LUBA lacked jurisdiction over the decision because it was not a land use decision under ORS 197.015(10). Specifically, the City argued that the ordinance did not implement Statewide Planning Goal 6 (Air, Water and Land Resources Quality) (Goal 6) because EC Chapter 6 did not implement Goal 6. Petitioner argued that the decision was a land use decision because the 1982 amendment was the City’s effort to comply with Goal 6 and the repealed EC Chapter 9 was moved to EC Chapter 6. The City conceded that the 1982 amendment implemented Goal 6 but argued that it was repealed in 2001, with the rest of EC Chapter 9, and was not moved to EC Chapter 6 in 2007. The City further argued that the replaced EC Chapter 9 implemented Goal 6. LUBA determined that Petitioner failed to show that the decision was a land use decision. Billington v. Polk County, 703 P2d 232 (1985). LUBA further determined that the ordinance did not implement Goal 6 because EC Chapter 6 did not implement Goal 6.

The City also argued that LUBA lacked jurisdiction because the decision would not have a significant impact on present or future land uses in the area (the significant impacts test). City of Pendleton v. Kerns, 653 P2d 992 (1982). Petitioner argued that the ordinance would significantly impact commercial and industrial land uses because of the uncertainty of the standards within the ordinance which in turn affected innumerable current and future commercial and industrial projects. Under the significant impacts test, the significant impact on current or future land uses must be actual, qualitative, or quantitative. Carlson v. City of Dunes City, 28 Or LUBA 411 (1998). LUBA determined that Petitioner failed to show that the ordinance passed the significant impacts test because Petitioner’s argument was speculative. Accordingly, LUBA held that the City’s motion to dismiss was granted.